Research › Search › Judgment

Meghalaya High Court · body

2021 DIGILAW 21 (MEG)

Mahender Singh v. Union of India

2021-04-20

W.DIENGDOH

body2021
JUDGMENT : W. DIENGDOH, J. 1. The pleaded case of the Petitioner is that he was enrolled as a recruit in Assam Rifles on 28.02.2004 and after completion of his training, he was posted with 11th Assam Rifles as his parent Unit. 2. On 20.09.2006, the Petitioner was granted 15(fifteen) days’ casual leave, which was sought to be extended to 35(thirty five) days on account of serious health condition of his mother. 3. In the meantime, the Petitioner’s father died on 03.01.2007 which has compelled him not to join service, for which he also sought to be discharged from service, but was rejected by the Respondents. 4. On 08.01.2008, the Petitioner requested the Respondent No. 6 to allow him to re-join duty through a representation which was sent by registered post and after waiting for a considerable period, he sent another request vide letter dated 13.11.2008. Apart from these representations, the Petitioner has sent a number of similar representations and has even made telephonic calls to the Adjutant of his Unit, but no reply was received from the Respondents Authorities. This prompted the Petitioner to personally appear before the Commandant for joining the Unit and accordingly, he reached the Transit Camp, Dimapur on 21.09.2010 and was there till 24.09.2010. During his stay, he also called upon the Adjutant of his Unit who informed him that his case has been forwarded to the higher authority and any order from them will be communicated to him. He was sent back from the Transit Camp and his leave certificate on which his reporting was acknowledged was also scored out and handed to him. 5. After waiting for six months without getting communication, the Petitioner on 25.02.2011 wrote a letter to Respondents No. 3 and 6 for re-joining his service, but he did not get any response. 6. On 29.04.2011, he received a letter from Respondent No. 6 asking him to report to his Unit and accordingly, he reported to the Transit Camp, Dimapur on 22.06.2011 where the Rear IC informed him that a message was received from Headquarters that he was to return home and that further information will be communicated to him. 7. The Petitioner then send a legal notice to the Commandant 11th Assam Rifles, D.I.G. 9th Sect. 7. The Petitioner then send a legal notice to the Commandant 11th Assam Rifles, D.I.G. 9th Sect. and D.G. Assam Rifles, Shillong on 27.07.2011, but he did not received any response to which he sent a reminder to the said Respondents No. 3 and 6, but to no avail. 8. That finally, on 10.06.2013, the Petitioner received a letter for Final Settlement of Accounts (Deserter) to which he responded vide letter dated 17.07.2013. It is also stated that along with the said letter dated 10.06.2013, the Respondents have conveyed to the Petitioner the Order No. I.11046/2/2011-A dated 31st Oct, 2011 (Annexure-XI) by which he was dismissed from service. 9. Thus being aggrieved by the said impugned Order dated 31.10.2011 passed by the Respondent No. 5, the Petitioner has therefore approached this Court with a prayer to quash the same. 10. Mr. S. Chakrawarty, learned Sr. counsel appearing for the Petitioner has submitted that the action of the Respondents Authorities in passing the said impugned Order dated 31.10.2011 is illegal and contrary to records, inasmuch as, the Petitioner by his voluntarily reporting to the Respondent Authority at the Transit Camp, Dimapur on 21.09.2010 and 22.06.2011 which fact is within the knowledge of the Respondent Authorities, yet the impugned Order was passed nevertheless. The fact that the Petitioner has also sent many representations to the concerned Authorities is also evident to prove that he was not a deserter and as such, the impugned Order was ill conceived and is liable to be set aside and quashed. 11. Another point raised by the learned Sr. Counsel is that the Respondent No. 5 has issued the said impugned Order in total disregard of Rule 25 of the Assam Rifles Rules 2010, since the Petitioner was never served with prior notice since the same was received by him only in the year 2013. The alleged reliance by the Respondent Authority on the proviso to Rule 25 cannot be accepted as there is no findings on record as to why the said proviso was resorted to. Therefore, non-compliance with the provisions of the said Rule 25 has rendered the impugned Order inoperative and implementation of the same a violation of the Fundamental rights of the Petitioner. 12. Finally, the learned Sr. Counsel has cited the case of Ex. Therefore, non-compliance with the provisions of the said Rule 25 has rendered the impugned Order inoperative and implementation of the same a violation of the Fundamental rights of the Petitioner. 12. Finally, the learned Sr. Counsel has cited the case of Ex. RFN/Safai Mukesh Kumar vs. Union of India, wherein this Court vide Order dated 03.07.2019 in W.P. (C) No 160 of 2016 has discussed the provision of Rule 25 of the Assam Rifles Rules, 2010. 13. Per contra, the Respondents appearing through Mr. R. Debnath, learned CGC has mostly relied on the averments made in the affidavit-in-opposition, wherein he submitted that it is a fact that the Petitioner was granted 15(fifteen) days’ casual leave and that he has applied for extension of the same, but since the casual leave is not subject to be extended beyond the authorised number of days in a year, the entire period of casual leave was converted into 35(thirty five) days of earned leave from 20.09.2006 to 24.10.2006 duly communicated to the Petitioner vide letter No. I.14012/Rec-02/2006/647 dated 12th Oct 2006. On expiry of the said leave, the Unit wrote a letter to the Mother of the Petitioner on 26.10.2006 that her son has not reported for duty and that he is to re-join duty at the earliest. But the Petitioner failed to report to the Unit and remained absent without any information. 14. Following the non-appearance of the Petitioner for duty, an apprehension roll was issued to the Superintendent of Police, Mahendragarh District, Haryana vide Letter No. I.11064/8/2006-A/1156 dated 05.11.2006 for his apprehension. 15. It is also the submission of the learned CGC that the Commanding Officer, 11 Assam Rifles held a Court of Inquiry on the circumstances under which the Petitioner had remained from duty and has come to a finding that the Petitioner is a deserter and he was accordingly declared a deserter from service from 25.10.2006 (Annexure-IV of the affidavit-in-opposition). 16. However vide communication dated 31.01.2008, in response to the Petitioner’s letter dated 08.01.2008, the Asst Comdt, Adjt for Comdt has directed the Petitioner to report to the Unit with all documents, but the Petitioner instead of joining kept on writing similar letters seeking permission to re-join. It was also acknowledged that an application dated 25.02.2011 regarding permission to join duties on compassionate grounds was received through HQ, DGAR vide Letter No. I. 32364/Rec(Doc-V)/11-AR/2011/25 dated 28.03.2011. 17. It was also acknowledged that an application dated 25.02.2011 regarding permission to join duties on compassionate grounds was received through HQ, DGAR vide Letter No. I. 32364/Rec(Doc-V)/11-AR/2011/25 dated 28.03.2011. 17. Again, vide Letter No 5001005/MS/A-2011/4099 dated 29.04.2011, the Petitioner was directed to report to his Unit with all documents, but he failed to report and instead caused a legal notice to be issued, which was duly responded by a reply to the Counsel who has issued the same on behalf of the Petitioner. 18. It is also the submission of the learned CGC that as per existing policy, a deserter without arms and ammunition holds lien with service for a maximum period of five years and is deemed dismissed from service on termination of lien. The period of five years, as far as the case of the Petitioner is concerned, have lapsed on 25.10.2011 and accordingly, the impugned dismissal Order dated 31.10.2011 was passed in terms of Section 11(2) and Rule 25 of the Assam Rifles Act, 2006 and related Rules of 2010. 19. In the context of the above, the learned CGC has submitted that the Petitioner has been given ample opportunity to re-join duty, but he failed to do so and in doing so, he cannot say that no opportunity was given to him to show cause before dismissal. 20. In support of his case, the learned CGC has cited the following case laws: (i) Chennai Metropolitan Water Supply and Sewerage Board and Others vs. T.T. Murali Babu, (2014) 4 SCC 108 . (ii) State of U.P. and Others vs. Ashok Kumar Singh and Others, (1996) 1 SCC 302 . (iii) Union of India and Others vs. Ghulam Mohd. Bhat, (2005) 13 SCC 228 . (iv) Union of India and Others vs. P. Gunasekaran, (2015) 2 SCC 610 . 21. The learned CGC has submitted that on the facts and circumstances of this case, the Petitioner has not been able to make out a case and this petition is liable to be dismissed. 22. On consideration of the argument advanced by the parties and the materials on record, what is required to be examined in this matter is whether due procedure according to rules was followed by the Respondents Authorities culminating to the dismissal of the Petitioner herein. 23. 22. On consideration of the argument advanced by the parties and the materials on record, what is required to be examined in this matter is whether due procedure according to rules was followed by the Respondents Authorities culminating to the dismissal of the Petitioner herein. 23. There is no dispute to the factual aspects that the Petitioner was initially granted casual leave for 15(fifteen) days w.e.f. 20.09.2006 to 09.10.2006. That he has sought for extension of his leave which was duly granted vide letter dated 12.10.2006 (Annexure-I of the Affidavit-in Opposition) is also on record. Thereafter, the Respondent has also produced the record of the letter dated 26.10.2006 issued upon the mother of the Petitioner informing her of the fact that her son had overstayed his leave and therefore, he was directed to report for duty as early as possible. This was followed by a notice of Apprehension for overstaying of leave dated 05.1.2006 issued upon the Superintendent of Police, Mahinder Garh, Haryana, which apparently was not affected. 24. It is further noticed that the Respondents Authorities having failed to get any response from the Petitioner have conducted a Court of Inquiry on 27.01.2007 and vide Order dated 03.04.2007, have declared him to be a deserter w.e.f. 25.10.2006. 25. However, it also appears that the Petitioner have communicated to the Respondents his desire to re-join service vide his letter dated 08.01.2008 which was responded to by the Asst. Comdt on behalf of the Respondent No. 6 vide letter dated 31.01.2008 directing him to report to the Unit with all documents (Annexure-V of the affidavit-in Opposition). This letter dated 31.01.2008 was allegedly not received by the Petitioner prompting him to send another letter dated 13.11.2008. 26. The Respondents have also acknowledged receipt of an application dated 25.02.2011 from the Petitioner with a request to re-join duties which was replied to vide letter dated 29.04.2011. To this letter dated 29.04.2011, the Petitioner has stated that he has responded by reporting to the Transit Camp, Dimapur on 22.06.2011, but he was asked to return home to await further information. 27. To this letter dated 29.04.2011, the Petitioner has stated that he has responded by reporting to the Transit Camp, Dimapur on 22.06.2011, but he was asked to return home to await further information. 27. That the Petitioner has issued legal notice dated 28.07.2011 was yet again acknowledged by the Respondents who is said to have responded by a reply to his Counsel, Shri Sat Narain Yadav vide letter dated 15.10.2011 with a request to instruct the Petitioner to report to his Unit for necessary disciplinary action to be initiated against him. 28. The Petitioner has then acknowledged receipt of the Final Settlement of Account dated 10.06.2013 enclosed with the impugned Order of dismissal dated 31.10.2011. 29. What can be seen from the above, is that there has been correspondence between the Petitioner and the Respondents Authorities on a number of occasions, some of which the Petitioner has denied having received and some of which he has acknowledged receipt. The Respondents have also admitted to these correspondence in their affidavit-in-opposition and has averred that some of the letters does not warrant reply. 30. Therefore, between 03.04.2007 when the Petitioner was declared a deserter and 31.10.2011 when he was dismissed from service, the parties are in correspondence and as such, the Respondent Authorities cannot claim to have no knowledge of the whereabouts of the Petitioner. 31. Let us now examine the provision of Rule 25 of the Assam Rifles Rules, 2010, the same reads as under: “25. Termination of service of enrolled persons on grounds of unsuitability - (1) Where a Commandant is satisfied that an enrolled person is unsuitable to be retained in the service, the enrolled person shall be: (a) so informed. (b) furnished with the particulars of all matters adverse to him. (c) called upon to urge any reasons he may wish to put forward in favour of his retention in the service: Provided that clauses (a), (b) and (c) shall not apply, if the Commandant is satisfied that for reasons to be recorded in writing, it is not expedient or reasonably practicable to comply with the provisions thereof: Provided further that the Commandant may not furnish to the enrolled person any matter adverse to him, if in his opinion, it is not in the interest of the security of the State to do so. (2) After considering the explanation, if any, the Commandant, may call upon the enrolled person to retire or resign and on his refusing to do so, the enrolled person may be compulsorily retired or discharged from the service.” 32. On the above observations, what cannot be found out from the records as well as from the affidavit-in-opposition filed by the Respondents are the details of the steps taken under Rule 25 (supra), as to whether the Petitioner was firstly informed about the intention of the proposed action to be taken against him, secondly the details of the particulars furnished to him as regard the matters adverse to him, and thirdly whether show cause notice was issued to him to urge any reasons he may wish to put forward in his defence. The only averment stated in this regard is that the Authority concerned has resorted to the proviso of the said Rule 25 on the ground that it was not expedient or reasonably practicable to comply with the provisions thereof. However, there is nothing on record to show that the Commandant has reduced in writing the reasons for his satisfaction. 33. This only goes to show that there has not been due compliance with the provisions of the said Rule 25 (supra) and therefore, the proceedings initiated against the Petitioner is vitiated. Consequently, the impugned Order dated 31.10.2011 cannot stand the scrutiny of law, the same is liable to be set aside and quashed. 34. The case of Chennai Metropolitan Water Supply and Sewerage Board (supra) as well as the case of Ashok Kumar Singh (supra) and the case of Ghulam Mohd. Bhat (supra) relied upon by the learned CGC are cases dealing with the issue of overstay of leave, being absent from duty without leave and the consequential punishment thereof, however the said decisions would not be relevant in this case at this juncture since this Court has found it fit to deal with the question of law and not the merits. 35. As to the case of P. Gunasekaran (supra) cited by the learned CGC, this Court is in agreement that the scope of interference by the High Court in service matter, particularly where inquiry proceedings are concerned, the Court cannot re-appreciate evidence acting as an appellate authority. 35. As to the case of P. Gunasekaran (supra) cited by the learned CGC, this Court is in agreement that the scope of interference by the High Court in service matter, particularly where inquiry proceedings are concerned, the Court cannot re-appreciate evidence acting as an appellate authority. However, at paragraph 15 of the same, the Hon’ble Supreme Court has extracted portions from the case of the State of A.P. vs. Chitra Venkata Rao, (1975) 2 SCC 557 of which relevant extract of paragraph 21 is reproduced herein-below: “21........The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion.....” 36. On an overall consideration of this matter, this Court is of the opinion that the impugned Order dated 31.10.2011 was passed without giving adequate opportunity to the Petitioner to response to the proceedings and as such, is liable to be set aside and quashed, which is accordingly done so here. 37. Consequently, the Respondents Authorities are directed to re-instate the Petitioner immediately, however with no back wages as he was admittedly absent from active duty from 20.09.2006. 38. On his reporting for duty, the Respondent Authorities are at liberty to initiate disciplinary proceedings against him after giving him proper opportunity to defend himself in accordance with law. 39. With the above, this writ petition is hereby disposed of. No cost.